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1994 DIGILAW 220 (PAT)

Mohd. Isha v. Khursheed Anwar

1994-05-16

O.N.ASTHANA

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Judgment O.N.Asthana, J. 1. This Criminal Revision is against the judgment and order of 6th Additional Sessions Judge, Siwan passed in Criminal Revision No. 32 of 1994, (Khurseed Anwar V/s. State of Bihar) delivered on 1st March, 1994, where the learned Additional Sessions Judge reversed the order of the Magistrate dated 13th January, 1994. 2. The matter relates to release of the B us (criminal case property). The Magistrate gave the possession of this vehicle to Md. Isha by his order dated 13th January, 1994. In revision the learned Sessions Judge set aside the order of the Magistrate and delivered the possession of the case property (Bus) to Kurshid Anwar. On 14.10.93 Md. Isha lodged the police report under Sections 406 and 420, IPC against Sri Baijnath Prasad, Khurshed Anwar and two others. The relevant allegations in brief, are that on 24th August, 1993, these accused persons obtained thumb impression and signature of Jamadar Mian (father of the complainant) and took away his Bus on 13th October, 1993. These accused persons are plying the Bus in their Agency. 3. This Bus was originally the property of one Md. Yakub who transferred it to Md. Isha. In brief, the case of Md. Isha is that Sri Baijnath Prasad and his associate Khurshid Anwar happened to obtain the thumb impression and signature of his father Jamadar Mian on blank papers and they cheated this revisionist and his father and later on 13th October, 1993, these accused persons took away his Bus and they started plying their Bus in their Agency. 4. The case of the Respondents is that Sri Baijnath Prasad (resident of Bihar) runs a big business at Calcutta and Jamadar Mian was his employee. As Jamadar Mian was retiring and wanted to lead comfortable life in the village of Bihar, Jamadar Mian was given a loan of Rs. 2, 30, 000.00 by Sri Baijnath Prasad for purchasing Bus and for plying it for his benefit and for the benefit of his (old) employer. Sri Baijnath Prasad. Later after the long illness, Baijnath Prasad came to Bihar and inquired about the B us from Jamadar Mian and when Jamadar Mian told him that the Bus has been purchased by his son in his own name, Jamadar Mian entered into an agreement with Baijnath Prasad on 15th August, 1993. Sri Baijnath Prasad. Later after the long illness, Baijnath Prasad came to Bihar and inquired about the B us from Jamadar Mian and when Jamadar Mian told him that the Bus has been purchased by his son in his own name, Jamadar Mian entered into an agreement with Baijnath Prasad on 15th August, 1993. Later on 17th August, 1993 Baijnath Prasad executed a power of attorney in favour of Khurshid Anwar giving him the authority relating the Bus. for its maintenance and plying. 5. According to Respondents later on 25th August, 1993, Md. Isha, executed sale letter relating this Bus in favour of Khurshid Anwar and also filed the forms and signed and swore affidavits for the transfer of the Bus Khurshid Anwar in Transport office. 6. The Magistrate observed in his order that the Bus was admittedly in the owner-ship of Md. Isha and Md. Isha was plying it and that the agreement was entered between Jamadar Mian and Baijnath Prasad and Md. Isha was not made party to that agreement and that the alleged transfer papers prepared in the name of Khurshid Anwar from the side of Md. Isha seem to be very doubtful, Khurshid Anwar was not the owner of the B us and later on Khurshid An war too did not pay any sale consideration to Md. Isha to secure the sale letter. Accordingly the Magistrate gave the case property (Bus) to Md. Isha for plying. 7. In revision learned Additional Sessions Judge accepted the allegations of Khurshid Anwar and Baijnath Prasad (without examining them) and passed the judgment setting aside the order of the Magistrate, and awarded the Bus (case property) to Khurshid Anwar. 8. learned Counsel for the Respondent raised the contention that this second revision to the High Court filed by Md. Isha is not maintainable. Reading of Sec. 397 (Clause 3 of the Criminal Procedure Code) shows that a second revision in High Court by the same party (who filed the revision before the Sessions Court) cannot be entertained in High Court. Time and again the Supreme Court in Zagir Singh V/s. Ranbir Singh -- and in Dharampal V/s. Smt, Ram Shree -- observed that the same person, cannot come to High Court in revision after filing and getting decided his revision in Sessions Court. 9. Here Md. Isha did not prefer the revision before the Sessions Judge. Thus, Md. Time and again the Supreme Court in Zagir Singh V/s. Ranbir Singh -- and in Dharampal V/s. Smt, Ram Shree -- observed that the same person, cannot come to High Court in revision after filing and getting decided his revision in Sessions Court. 9. Here Md. Isha did not prefer the revision before the Sessions Judge. Thus, Md. Isha could come to the High Court to file this Criminal Revision to raise his contention. 10. learned Counsel for the petitioner urged that the revision was not maintainable before the Sessions Judge against this order of the Magistrate passed relating the interim custody of the case property (here the Bus). Reference has also been made to the decisions of Nathu V/s. State 1976 Cr.LJ 358. Smt. Anish Begum V/s. Masum Ali 1986 Cr.LJ 503 where the High Court held that the Sessions Judge or the High Court has no power to revise an interlocutory order passed by the trial court Magistrate. 11. Here the Magistrate passed the orders on 13th January, 1994 (sic) custody of the case property (Bus). The rights or liabilities of the parties relating the Bus were not being decided by the Magistrate. Obviously the order of the Magistrate was an interlocutory order. No revision was maintainable before the Session Judge against this order of the Magistrate dated 13th January, 1994. 12. This revision filed by Md. Ishain this Court is Jiereby allowed and the Judgment and order of 6th Addl. Sessions Judge in Cr. Rev. 32 of 1994 dated 1.3.1994 are hereby set aside. The order of the Magistrate dated 13.1.1994 stands upheld. Accordingly the Chief Judicial Magistrate will be complying his order dated 13th January, 1994.